I. Intentional Torts: Physical and Emotional Harm Battery

8. 
   Holmes, the Common Law: General principle of civil liability at common law, tort liability imposed absent consent. Rules determine whether act brings liability, but not whether damage will result and compensation be required. Consider not the damage, but what justifies the liability, because the damage is happenstance.
   
   1. 
      Two theories of unintentional harm liability:
      
      1. 
         Austin Criminalist Theory: Sacntion or detriment threatened and imposed by the sovereign for disobedience to his commands. Liability ought to be based on personal fault, making negligence D’s state of mind.
         
      2. 
         Man acts at his peril. Never liable for omissions except under duties voluntarily undertaken. Liability results when voluntary action causes damage, regardless of foreseeability. Trespass is such a strict liability principle.
         
      3. 
         But ii has been rejected by some eminent courts. Ignores lack of foreseeability, cannot blame people for what is not foreseeable. Choice of which consequence is unforeseeable is no choice at all. Unavoidable harms fall upon whom they fall. Unavoidable if ordinary human care and foresight are unable to guard against it. Otherwise any act would be sufficient just by setting in motion or opening the door. Point of foreseeability is to have a choice, so it can be avoided.
         
      4. 
         Note: Ex ante/ ex post liability. Negligence because reasonable foresight. Standards of conduct must be known in advance. But strict liability says no one take comfort from standard as ambiguous as reasonable care under the circumstances, Ex Post. If strict liability imposed, can then very carefully decide what action will take.
         
9. 
   Strict Liability and Negligence in Modern Times, Stone v. Bolton 1950: P struck on head with cricket ball in front of her house by ball hit out of nearby cricket ground. Negligence question is whether was reasonably foreseeable risk, or unprecedented occurrence. Since hit there before, though rarely, but expected to happen eventually. Since reasonably foreseeable, duty to prevent. Claimed nothing could have stopped that ball hit so high. If unsafe, could stop playing cricket.
   
   1. 
      Bolton v. Stone 1951, D appealed to house of Lords for unamimous reversal. Reid: What is duty of person permitting activity threatening danger to adjoining highway? TEST: whether risk of damage to person on the road was so small that a reasonable man in the position of the appellants, considering the matter from the point of view of safety, would have thought it right to refrain from taking steps to prevent the danger.
      
      1. 
         Account for how remote the chance of striking, and how serious the consequences would be.
         
      2. 
         Need not take into account the difficulty of the remedial measures.
         
      3. 
         If cricket cannot be played there without substantial risk, should not be played. Judge said large enough to be safe for practical purposes. close case, but shouldn’t have disregarded the risk, not small enough.
         
   2. 
      Bolton v. Stone not really a dangerousness case. Question of what types of risks we tolerate. If foreseeable, duty to pay. Even if rare, precedented and foreseeable. Internalize costs, play and pay for damage (lower court). Upper court: always has risks, small and remote risk. Want people to be responsible for grave risks. Bolton not great at determining which risks to tolerate.
      
   3. 
      Strict liability has same prima facie case, and rules out defenses based on D’s level of care, but allows others based on P’s misconduct or inevitable accident. AL offends corrective justice, SL explains wrongfulness in terms of these defenses.
      
   4. 
      Note 4: Economic efficiency instead of corrective justice: Minimize administrative costs of enforcement, let costs lie where they fall, unless benefit from shifting. Transaction costs, if 0 wouldn’t’ matter how rights allocated. Lower such costs when courts enforce gap-filling terms for silent contract terms. Economic efficiency alone demands entitlements that favor knowledgeable choices between social benefits and costs thereby incurred. Place cost on person best able to make analysis. If cannot tell who can best avoid, on party with lowest transaction costs to correct the error.
      

A. The Reasonable Person (Sept. 25) (week 4.1-2)

Objective vs. Subjective Standard: Vaughan v. Menlove, 145-48

Children: Roberts v. Ring; Daniels v. Evans

Mental and Physical Disabilities:

Breunig v. American Family Insurance Co.; Fletcher v. City of Aberdeen

For Richer or for Poorer, in Drunkenness and in Sobriety

B. Calculus of Risk and Cost-Benefit Analysis (Week 4.3):

Foreseeability? Community standards?

Risk Calculus/Cost benefit/BPL? common carrier heightened liability?

D. Statutes and Regulations/ Negligence Per Se (Week 5, Wed.)

E. Proof of Negligence/Res Ipsa Loquitur

5. 
   The Negligence Standard
   

1. 
   Negligence as a separate and distinct tort, having four elements: duty, breach, causation, and damage. Having all four is prima facie case
   
   1. 
      Duty- did D owe P duty to conform conduct to standard necessary to avoid an unreasonable risk of harm to others?
      
   2. 
      Breach- did D’s conduct, whether by act of omission, fall below the applicable standard of care? was D negligent, engaging in “conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm. RST 282. Conduct is negligent if it’s disadvantages outweigh its advantages.
      
      1. 
         P tried to show that some inexpensive precaution could have prevented some likely serious injury.
         
      2. 
         D tries to show that the precaution was excessively costly, redundant, ineffective, or downright dangerous.
         
      3. 
         Safety regulations used as guideposts sometimes.
         
   3. 
      Causation: Was D’s failure to meet applicable standard of care causally connected to P’s harm?
      
      1. 
         causation in fact
         
      2. 
         proximate causation.
         
   4. 
      Did P suffer harm.
      
2. 
   The reasonable Person. Reasonable people are still unreasonable at times. Reasonable people don’t make negligent mistakes, they make reasonable (non-liable) mistakes.
   
   1. 
      Vaughan v. Menlove Objective Std 1837: D warned of his peril, insured his stock, said he would chance it. Made a chimney in the Rick, which later spontaneously combusted, burned cottages, barn and stables down. 1) Too close to property line. 2) Built the rick the wrong way. D appealed that cannot be held to ambiguous reasonable person standard, but only to the best of his ability. Everyone has duty to use property so as not to injure others. Jury question has always been the conduct of the prudent man.
      
   2. 
      Homes: Not whether D thought his conduct was that of a prudent man, but whether you think it was living in society requires a certain average of conduct, a sacrifice of individual peculiarity going beyond a certain point to protect the general welfare.
      
   3. 
      Roberts v. Ring (Children, Beginners, and Experts) Minn 1919. Minor son P, 7 years old, collision with car. Jury for 77-year old D. Sight and hearing defective. Boy ran in front of car and was hit. 1) Trial treated child equally to an adult. 2) Trial court gave D credit for being old, treated him as reasonable 77-year old. 1) Appeal said take P’s age into account. 2) Appeal did not say treat 77-year old like any other, but that if 77-year old decides to drive, treat as a reasonable driver. 7-year old not held to same standard of care for self-protection. Contributory negligence standard is the degree of care commonly exercised by an ordinary boy of his age and maturity. If he caused injury to another, his age would be no excuse.
      
      1. 
         When one by act or omission causes injury to others, his negligence is judged by standard of care usually exercised by the ordinarily prudent normal man.
         
      2. 
         Disability: Restatement refuses to take old age into account, but includes old age infirmities by using the reasonably careful person with the same physical condition.
         
      3. 
         Beginners- held to standard of those reasonably skilled and practiced in the art. No accommodation. Lower standard of care for beginner encourages them to attempt new activities, but exacts a subsidy from the people they hurt, and not from the public at large. Beginner is the better cost avoider, and provides Incentive for beginner to insure themselves for dangerous activities.
         
      4. 
         Exception: if P assumed the risk that D will exercise lower standard of care, like when experienced driver agrees to teach novice. Lower standard of care against driving instructor, but not against the pedestrian he hits.
         
      5. 
         Experts- held to the standard of skill or knowledge normally possessed by members of that profession or trade group in good standing in similar communities unless he represents that he has greater or less skill than the average. RST 299. Average expert
         
      6. 
         RS 298 comment D: actor must use reasonable attention and caution has as a reasonable man, but also any superior qualities he actually has. Supernormal physical strength must be used. If extra prepared and extra precautions taken, must reasonably employ them.
         
      7. 
         Tort law puts more latitude on the expert than on the physical abilities. But experts tend to represent their greater skill to get more money. Pushes floor up for experts and poorly skilled.
         
   4. 
      Daniel v. Evans Majority Rule NH 1966: 19-year old killed when motorcycle collided with D’s auto. Jury for P, D argued wrong charge for dead P’s standard of care: Minor must exercise the care of the average child his age, experience and stage of mental development. Minors judged by age-appropriate standard when engaged in activities appropriate to their age, experience, and wisdom. Since dangerous adult activity, hold minor to same standard of care to protect the public, who can’t know whether a minor is driving or not. Unrealistic, contrary to legislative policy, and inimical to public safety to have lower standard for minor drivers. Same standard of ordinary care applies to minor operators of motor vehicles whether charged with primary negligence, contributory negligence, or causal violation of a statute.
      
   5. 
      Similar to last (Roberts v. Ring), if younger person (older in last) engaging in risky behavior, put self at level of expectation of ordinary person engaging in such activity. Children privileged to engage in child activities. Shifts standards based on community standard. Jury helps us know what community thinks is appropriate. Bottom line reasons to shift rules:
      
   6. 
      Children standard is semi-objective. Tailored to reasonably careful person of same age, intelligence, and experience. RS 283A. Adult (dangerous) activities exception: most consistently when children use motorized vehicles. Danger, Lack of notice that child, Insurance available. Tort law follows insurance.
      
      1. 
         Note 1: Charbonneau v. MacRury NH 1931 was overruled by Daniel v. Evans, and justified its rule by the necessity of allowing children to learn to be adults by interacting with adults without penalizing them for their mistakes. Reason requires indulgence commensurate with his want of development indicated by age and experience.
         
      2. 
         Goss v. Allen NJ 1976 affirmed instruction that 17-year old beginning skier be held to appropriate standard for his age. Other adult activities like driving a car/motorcycle and hunting, require a license, while skiing does not. But lots of dangerous activities don’t require a license.
         
      3. 
         Dellwo v. Pearson Minn 1961: 12 year old held to adult standard in operating speed boat, despite lack of licensing. Pg 183. etc etc. dangerous machine operation.
         
      4. 
         Connor v. Putney OR App 2004: Golf cart driving is not an adult activity.
         
      5. 
         under 5, not capable of negligence.
         
      6. 
         Note 2: Daniel held child P and D’s to same standard in auto collisison, widely followed today. Relaxed subjective standard to P’s contributory negligence avoids conflict, refines fault furthers the compensation of victims by cutting down on defenses. Should be objective standard for D, and subjective standard for P.
         
3. 
   Mental and Physical Disabilities:
   
   1. 
      Breunig v. American Family Insurance Wis 1970: Batman can fly Mental Disability- D’s car veered across center and hit P. Suddenly and without warning seized with a mental delusion, leaving her unable to operate vehicle. Jury found she had knowledge or forewarning of her mental delusions, negligent for driving the car at all. Held: sudden mental incapacity equivalent in its effect to such physical causes as a sudden heart attack, epileptic seizure, stroke, or fainting should be treated alike and not under the general rule of insanity. Foreseeable (forewarned) mental disabilities make you liable. No semi-objective standard, no reasonably insane person.
      
      1. 
         Emergency Doctrine. In Emergency allowed more latitude to take extra risks. Some courts give more latitude in emergency in jury instructions. Warning makes it less of an emergency.
         
      2. 
         Mentally insane always liable for foreseeable when having moments of lucidity. Not barred from driving, but drive at their own peril.
         
         1. 
            False claims, concerned about fraud
            
         2. 
            Someone has to suffer, between two innocents, put liability on one more responsible for the harm, better cost avoider for person with Notice and foresight.
            
         3. 
            Incentivize estate or family to restrain the crazy person. Caregiver
            
         4. 
            Logic of confinement, prevent harmdoer from hurting others.
            
      3. 
         General blanket rules
         
         1. 
            Emergency exception
            
         2. 
            Institutionalized exception (Gould case), avoid over confinement, already achieved adequate confinement.
            
            1. 
               Mentally ill person not liable to caregiver (Gould)
               
            2. 
               Caregivers not liable if they choose less restraint (Janke)
               
            3. 
               Both directed to decrease confinement.
               
      4. 
         Mentally insane less able to respond to risks, less likely to respond to law.
         
         1. 
            But mentally insane probably don’t know they are insane. The nature of your disability is that you can’t recognize the warning. Problem of notice.
            
         2. 
            Person with disability may not be best person to prevent, but incentive for family, guardians, etc.
            
         3. 
            Although insurance company may not be able to control person, but legal incentives can ask them to monitor their persons.
            
         4. 
            Not perfect, but little alternative. Someone must suffer the loss, more morally culpable. Can incentivize them.
            
      5. 
         Risk regulation and Deterrence: People may not be responsive, but tailor rule to get family, networks, institution to restrain. But avoid incentives to overrestrain.
         
      6. 
         Tort law works to raise floors for those with lesser abilities and ceilings, those with more resources, expertise.
         
      7. 
         Semi-objective test for emergencies, held to what reasonable person would do in an emergency.
         
         1. 
            Sudden afflication of episode or mental diability does not move you from strict liability to none, but to the average person with a psychotic episode like theirs.
            
         2. 
            Silly to say holding to reasonableness standard when they are, by definition, unreasonable. Like strict liability.
            
         3. 
            We put liability on them hoping that either in lucid moments they will take precautions, or that others will control them.
            
      8. 
         Note 1: Breunig approach to insanity still governs auto accidents.
         
      9. 
         Note 2: Breunig has been narrowed in custodial settings. Gould v. American Family Wis 1996: institutionalized alzheimer’s patient injured paid caregiver. Caregiver can reasonably foresee. Inducing estate not need, already institutionalized. Isn’t pretending.
         
      10. 
          Jankee v. Clark County, refused to impose liability on institution that failed to restrain P, mentally ill patient, who previously injured self while trying to jump through window. Held P to objective standard of care to minimize level of institutionalization required of insame people.
          
      11. 
          Creasy v. Rusk Ind 2000: Followed Gould. Berberian v. Lynn alzheimer’s patient no duty to carefiver
          
   2. 
      Fletcher v. City of Aberdeen WA 1959: Physical disabilities- Ditch for electrical lines, barricades removed by worker. Failed to replace when left. Blind piano tuner with cane would’ve known if barricades were in place. Duty to maintain sidewalks and parking strips is continual. The blind person obliged to use the care which a reasonable person under the same or similar disability would exercise under the circumstances. The city, is obliged to afford that degree of protection which would bring notice to the person so afflicted of the danger to be encountered. In general, you must take into account foreseeable disabilities among potential victims.
      
      1. 
         As a potential D, must take into account foreseeable physical disabilities.
         
      2. 
         As a potential P, conduct of physically disabled is negligent if does not conform to standard of action of a reasonable person with their physical disability. SEMI-OBJECTIVE.
         
   3. 
      Note: Legal Blindness- Poyner v. Loftus DC 1997: Tripped over bush, would have seen though poor eyesight if not distracted by someone’s call. Negligent in turning head while continuing to walk forward. Those with defective eyesight must take keener watchfulness in their affairs.
      
      1. 
         Because blind, expected to take extra precautions
         
      2. 
         If drunkenness reduces your super abilities to normal and you exercised normal care, you’re fine.
         
   4. 
      Foreseeability, Blyth v. Birmingham Water Engl 1856: Company buries water mains and fire plugs, pipes 18 inches underground. Plugs according to best system and in good order. 25 years later water escaped from neck of main into P’s house. Engineer said caused by extreme frost. Judge said if replaced plug accident prevented. Jury question: should he have taken out the plug? Judgment as a matter of law, such a state of circumstances constitutes a contingency against which no reasonable man can provide.
      
      1. 
         Dissent: D no duty to keep plugs clear. Cause of accident so obscure, not discovered until many months after accident happened.
         
      2. 
         Negligence is lack of ordinary care; the failure to use that degree of care that a reasonably prudent person would have used under the same circumstances.
         
      3. 
         Two take-home messages:
         
         1. 
            Traditional frame of the Negligence: omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
            
         2. 
            Focus on foreseesability: Freeze so remote and unlikely, that not foreseeable. Such standard endorsed by Holmes, and picked up by Bolton v. Stone: Trial had liability because risk, where appeal said no liability unless substantial risk, opening to Hand Test.
            
4. 
   Wealth: For Richer or for Poorer (Robinson, Peterson, and note 192-4). Robinson v. Pioche Cal 1855: Uncovered hole dug in sidewalk in front of d’s premises, intoxicated P does not excuse such gross negligence. Drunken man as entitled to safe street as a sober one, and much more in need of it.
   
   1. 
      Denver RR v. Peterson Colorado 1902: Duty of warehousman is the same whether he is rich or poor.
      
   2. 
      Note: Deterrence of socially undesirable conduct and compensation of victims are goals of tort. Wealth irrelevant to deterrence, because based on assumption that cost and benefit are weighed. Cost/benefit the same whether D rich or not. Ability to pay irrelelvant to right to recovery. Evidence of wealth inadmissible, but discoverable. If you want to redistribute, do it through taxes, more effective, apply to everyone.
      
   3. 
      Argument: D’s wealth is irrelevant to deterrence. But rich people have more money, less deterred, so if higher liability. Rich held to higher standard because the poor are judgment proof.
      
   4. 
      Cost benefit the same for rich/poor? Corporation more likely to engage in cost/benefit analysis than average person. Those with wealth think more about their money. But might think less about it, don’t have to worry about it as much.
      
      1. 
         Marginal utility of wealth is lower if you are wealthy. If you have more money, loses a little bit of it doesn’t matter so much because you have more.
         
      2. 
         But really says if they breach the same duty, should have to pay more. Higher standard doesn’t make any sense. Punitive damages used to incentives reckless actors.
         
      3. 
         Diminishing marginal rate of return: more money, each new dollar is worthy less to you.
         
      4. 
         Wealthy people more able to take precautions, repair the car. More feasible for wealthy to meet the standard. Bill gate’s can easier pay someone to shovel the sidewalk.
         
      5. 
         Law currently does not distinguish between the amount of wealth someone has. In practice jurors do take it into account.
         

5. 
   Calculus of Risk-
   
   1. 
      US v. Carroll Towing Co. 2d Cir. 1997: Barge sank off pier 51. Carrol tug operated by grace moving boats around, let’s Anna C lose, collides, sinks with the flour. Carroll and Grace are equally negligent in how they moved the boats around. No duty to anticipate negligence of other actors? Learned Hand avoids abstract discussion of duty. No general rule to determine when the absence of a bargee or other attendant will make he owner of the barge liable for injuries to other vessels if she breaks away from her moorings. But would then have to reduce damages proportionally. Since ships can always break away,
      
      1. 
         The probability that she will break away. P
         
      2. 
         the gravity of the resulting injury, if she does. L
         
      3. 
         the burden of adequate precautions. B
         
      1. 
         Note 1: PL < B: Economic interpretation of negligence. Factors in lacking reasonable care: RTT 3
         
         1. 
            Foreseeable likelihood that the conduct will result in harm
            
         2. 
            foreseeable severity of any harm that may ensue
            
         3. 
            Burden of precautions to eliminate or reduce the risk of harm.
            
      2. 
         Halek v. US 7^th Cir 1999: P lost balance, tripped and caught hand in pulley system, Posner used hand’s three factors.
         
      3. 
         Note 4 Risk Neutrality: In practice, sometimes people prefer risks and sometimes they are averse to it. Hand assumes risk neutrality. We may be risk preferrers in domain of losses and risk averse in the domain of gains, why people gamble and buy insurance.
         
      4. 
         Note 6 Discontinuities and choice between negligence and strict liability: Under SL liability small errors generally only generate small consequences. Responsible for everything, so small shifts in care levels generate only small changes in the frequency or severity of harm. Negligence, D may be close to the line, could find a small decrease in the level of care exposes him to liability for all accidents instead of none. Negligence provides stronger incentive. But may induce too much or too little care.
         
      5. 
         Survey said: matters little whether precaution was much more costly than the risk, equal, or risk more costly than precaution. Warning made only a small difference. Punitive damages always 4-5. Didn’t matter whether precaution was economic or not. After class, our vote followed more in line with the balance. Much lower punitive damages today than comparable test we saw on Monday. Framing device of Learned Hand lowered our punitive damages.
         
   2. 
      
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